Mass. Supreme Court Runs Amok: When the Massachusetts Supreme Judicial Court Gave Homosexual Couples Equal Legal Standing with Traditional Marriage, It Crossed the Line from Judging Law to Making Law

Article excerpt

Every elementary school student is--or used to be--taught that the legislative branch of government makes the laws, the executive branch enforces the laws, and the judicial branch judges whether the laws of the legislature have been broken or if statutes themselves are unconstitutional. That's called "separation of powers." But Massachusetts' highest court, the Supreme Judicial Court (SJC), brazenly obliterated that basic distinction between the legislative and judicial branches of government in the November 18 Goodridge v. Department of Public Health decision.

The 4-3 SJC decision openly admitted that laws passed by the legislature indicated that marriage consists of a man and a woman. "The only reasonable explanation is that the legislature did not intend that same-sex couples be licensed to marry," Chief Justice Margaret H. Marshall conceded in the court opinion. "We have recognized the longstanding statutory understanding, derived from the common law, that 'marriage' means the lawful union of a man and a woman."

The court also admitted, citing as example the 1810 case of Hanlon v. Rollins, that past Massachusetts courts have ruled that marriage "is an engagement, by which a single man and a single woman, of sufficient discretion, take each other for husband and wife." Marshall's opinion conceded the obvious: "Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries."

So if the court admitted the statutes have always held that marriage is limited to a man and a woman, and if past court decisions and common law tradition confirm this, then how can it rule that the law says same-sex couples have a right to manage? "The larger question is whether," Marshall wrote, "government action that bars same sex couples from civil marriage constitutes a legitimate exercise of the state's authority to regulate conduct, or whether, as the plaintiffs claim, this categorical marriage exclusion violates the Massachusetts Constitution." Say again'? Isn't this the same 1780 Constitution written by puritan John Adams?

Indeed it is. But the SJC majority didn't imply that John Adams favored treating homosexual couples on a par with traditional marriage. They concluded instead that "the marriage ban does not meet the rational basis test for either clue process or equal protection.... In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license."

In his dissent, Justice Francis X. Spina exploded this straw argument:

   What is at stake in this case is not the
   unequal treatment of individuals or
   whether individual rights have been
   impermissibly burdened, but the
   power of the legislature to effectuate
   social change without interference
   from the courts.... The power to
   regulate marriage lies with the
   legislature, not with the judiciary....
   The marriage statutes do
   not disqualify individuals on the
   basis of sexual orientation from
   entering into marriage....
   Whether an individual chooses
   not to marry because of sexual
   orientation or any other reason
   should be of no concern to the

The Massachusetts Constitution only guarantees a "right" to same-sex marriages if one assumes, as the SJC does, that "civil marriage is an evolving paradigm." Marshall ruled that the appellate court decision granting a "right" to same-sex marriage "refined the common-law meaning of marriage. We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards." Ah, evolving constitutional standards. In the vernacular, that means the Supreme Judicial Court opinion was not a judicial decision; it was a legislative act. …